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Reviewed by Allison Brownell Tirres (DePaul University College of Law)Published on H-Law (May, 2007)

Law, Boundaries, and Paradox

In this significant collection of essays, editors Mary L. Dudziak and Leti Volpp take a new approach to the popular and much-touted "transnational turn" in the study of American history and culture. While many scholars have promoted the idea of looking at the United States from the perspective of the peripheries, few have effectively addressed the role of law in creating, maintaining, or challenging bordered spaces.[1] The traditional field of border studies has a limited conception of law, as mostly a matter of policing and border enforcement.[2] For its part, the field of legal studies typically conceives of borders strictly as territorial demarcations, rarely portraying them in their full social and cultural context. This collection takes an important step in bridging the divide between these two fields. It does so by broadening our conceptions of both law and borders, raising intriguing questions about American society in the process.

The volume, which grew out of a symposium hosted by the Hart Institute for American History at Pomona College in 2004, is a special issue of American Quarterly, the official publication of the American Studies Association. It is inherently eclectic, exhibiting the diversity of disciplines that can fall under the rubric of American Studies. Contributors include professors of law, history, geography, criminology, American literature, and gender studies, among other fields. The fifteen essays cover a wide range of American history, including some contemporary discussions, and they employ markedly different methodologies. Austin Sarat, for example, explores the meanings of executive clemency in the eighteenth century using close readings of political philosophy and judicial opinions, while Maria Josefina Saldana-Portillo explicates the modern-day trade policies of NAFTA using the Mexican film Y tu mama tambien(2001).

As even the titles of the essays indicate, the editors have chosen to define what qualifies as a "legal borderland" in an expansive way. This has both advantages and disadvantages, since it opens up many interesting fields of inquiry yet also sometimes leaves a reader searching for connections, especially since few of the authors provide concrete definitions of the term.[3] A close reading of the essays, however, reveals several competing meanings. For some contributors, a legal borderland is any liminal space that is regulated by the state in some manner: for Nayan Shah, it exists in the spaces of social contact between migrant males--the "streets, alleys, boardinghouses, labor camps, and ranches"--that came under increased suspicion and regulation during the Progressive Era (p. 112); for Amy Kaplan, a legal borderland is represented best by the U.S. Naval Station at Guantanamo Bay, an ambiguous zone that is regulated by its own strange mix of laws, stemming from its imperial past.

Other essays share a different vision. In these, a legal borderland serves to describe the ambiguous citizenship status of particular individuals. These authors argue that if you are stateless (Linda K. Kerber), a Cold War "escapee" (Susan L. Carruthers), or an undocumented migrant (Saldana-Portillo), you live your life in a legal borderland, no matter where you actually are in a geographical sense.

For yet other authors, a legal borderland is more specifically about territory and sovereignty. In his essay on American imperialism in the Philippines, Andrew Hebard argues, for example, that legal borderlands are "sites where the state is emerging and where the territorial and legal limits of the United States are being negotiated" (p. 216). Teemu Ruskola's study of extraterritorial jurisdiction in China and Lisa Yoneyama's exploration of the U.S. occupation of Japan are other good examples of this approach.

There are obvious gains to be made in defining the abstract concept of a "legal borderland" so broadly. For one thing, this approach takes both border studies and legal studies out of their more familiar territory. For example, both Devon W. Carbado and Siobhan B. Somerville write about naturalization policy, using the insights of critical race theory (Carbado) and queer studies (Somerville) to highlight the salience of internal borderlands. They make the important point that how a nation defines who can become a citizen is just as much an issue of boundary-making as deciding who can cross the border. Given the many variations on the theme of legal borderlands in this volume, however, it is hard to draw a clear thread based on this concept to link these essays. Surprisingly, a close reading reveals a different connecting thread, shared by all the essays in one form or another: the persistence of paradox in American history and culture. The essays repeatedly demonstrate how contradictory impulses in law and politics can co-exist and even reinforce one another. Linda K. Kerber, for example, notes that stateless individuals, rather than challenging the need for nation states in a globally connected world, actually reinforce the idea of the nation state "by embodying its absence … by signaling who will not be entitled to its protection" (p. 153). Christina Duffy Burnett argues that American imperial expansion in the nineteenth century was itself also reliant on contraction; as she writes, "American imperialism is ultimately about the management of national boundaries as much as it is about their expansion" (p. 189). For Lisa Yoneyama, a key paradox emerges in the "simultaneous violence and benevolence" of the American occupation of Japan after World War II (p. 297). Moon-Ho Jung strikes a similar stance in his study of Chinese "coolie" labor, drawing on what he calls the "contradictory imperial imperatives of enslavement and emancipation" (p. 87).

What are we to make of this recurring theme? It may simply be that any discussion of borders leads inevitably to paradox. In his book discussing the border between Ghana and Togo, Paul Nugent notes that borders are made up of an essential duality. "Opportunity and constraints are part of a single package," he writes, "which is precisely what makes border zones such sites of ambivalence and ambiguity."[4] One could argue that law expresses a similar, and oftentimes contradictory, duality. Like a border, law can be a tool for both maintaining and resisting hegemony. By placing these concepts of border and law together, this volume brings into greater focus the paradoxical nature of both. Whether intended or not, the result is to make the law look like an inherently unstable, contradictory world of meaning, far from the rational, logical, and predictable "rule of law" that the United States heralds at home and abroad. This destabilization may be one of the most interesting results of this collaborative volume. In short, while some scholars may wish for more precision in the definition of a legal borderland, all should agree that this is an ambitious beginning to what will hopefully be a continuing discussion about the role of law in the multiple peripheries of American history and culture. Notes

[1]. One exception to this statement is the symposium on law and borders hosted by Stanford Law School in 1996. See "Symposium: Surveying Law and Borders," in Stanford Law Review48, no. 5 (1996): 1037-1429.

[3]. The editors do address issues of definition in the introduction, but they are more successful at defining borderlands in general than they are at defining the more specific idea of legal borderlands (pp. 3-5).